Water Symposium Overview   Safe Drinking Water for First Nations Legislation Project

Safe Drinking Water for First Nations Legislation Engagement Key Options Discussion Prepared May 14, 2019

Rights and Responsibilities to Provide Safe Drinking Water Option 1: Do not characterize ‘aboriginal’ rights to water in the legislation Option 2: Characterize Crown and First Nations water rights directly in the legislation Option 3: Characterize Crown and First Nations in an ‘aspirational’ form (in a preamble) with a strong ‘non-derogation and non-abrogation’ of rights clause in the body of legislation Pros: May be easier to pass the legislation, and doesn’t risk committing First Nations to delineating the scope of their rights in a way that might be problematic in the future Cons: Silence may be taken as acquiescence and First Nations rights and title may be further disregarded in implementation of the law, loss of an opportunity to agree upon the precise scope and extent of First Nation rights and title, and may undercut the future assertion of First Nations rights and title. Pros: Provides some certainty to all parties, provides a clear link between the rights and responsibilities of the Crown and First Nations, creates a clear legal standard. Cons: Complex to negotiate particularly in the form of a statute with national reach, significant potential for creating legal precedents and high possibility of litigation, risks creating a ‘crystallization’ of rights and title that doesn’t let them grow and adapt to new situations. Pros: Easier to negotiate, non-binding, helps create some guidance for all parties, clearly signals that First Nations do have and assert rights over the subject matter without committing Nations to definitions for all time and purpose. Cons: Non-binding, aspirational, leaves uncertainty as to powers and jurisdiction, may be merely postponing difficult discussions that must be had to ensure safe drinking water can be provided. Prepared May 14, 2019

Creating First Nation’s Water Governance Institutions Option 1: Create a water governance approach and structure (i.e. First Nations Water Commission) in the legislation Option 2: Create a high-level approach and structure for First Nations water governance to be grow organically at the national level using a First Nations water commission Option 3: Create an opt-in approach to exercising water governance. Option 4: Don’t engage the water governance arrangements at all in the legislation Pros: Provides certainty and clarity to all parties; creates or improves First Nations institutional capacity; can be structured to support local, regional, and national approaches; ensures safe drinking water is in hands of First Nations. Cons: If improperly created, may restrict flexibility and local innovative approaches, may be prejudicial to First Nations’ existing structures and work in progress. Pros: Balances certainty and clarity with options to evolve organically, allows some national level governance with room for local approaches, helps address capacity problems Cons: Might create a centralized system that some Nations or regions don’t want, may be difficult to negotiate and may have strong opposition from provinces and territories; will need to be approached carefully to ensure that any delegation of authority to a centralized Commission is not used to undercut the Crown’s fiduciary responsibilities, to take inherent jurisdiction and authority from individual Nations, or to divert funding to FN’s and their existing organizations. Pros: Allows for local variability in readiness of First Nations Cons: Creates a “patchwork” of systems and approaches. Pros: Easier to accomplish, leaves space for creating governance arrangements in future Cons: Fails to use this opportunity to make improvements to existing governance approaches, doesn’t provide any clarity on an approach or structures in future. By default, may leave the administration of water regulation and funding to the same kind of ISC processes and policies which have hampered First Nations’ individual aspirations to attain and sustain clean water and wastewater. Prepared May 14, 2019

Transboundary Governance: Decision Making with Provinces/Territories to Protect/Manage Sourcewater Option 1: Confirm that the legislation supports First Nation’s exercising their jurisdiction and protect off-reserve source water through agreements made with other Crown governments Option 2: Set out First Nations jurisdiction to protect source waters off-reserve Option 3: Don’t acknowledge First Nations jurisdiction in the legislation Pros: Agreements would provide sufficient mutually agreed clarity to ensure source waters are protected; not defining First Nations jurisdiction just acknowledging their power to make agreements with Crown governments; this clause is not in danger of federal overreach into provincial jurisdiction. Cons: Agreement is not mandatory and so may be exceedingly difficult to negotiate with oppositional provincial governments Pros: First Nations jurisdiction is acknowledged and implementable; avoids litigation to implement jurisdiction Cons: Likely to be opposed by provinces and territories and this provision would be seen as federal overreach without provincial / territorial agreement. Pros: Easily accomplished, theoretically leaves space to negotiate/create arrangements with other orders of government Cons: Silence may be interpreted as acquiescence in an asserted lack of jurisdiction which is problematic, particularly in provinces where the provinces/territories assert unqualified “ownership” over water resources, fails to seize a powerful legislative opportunity to provide clarity/instruction to other orders of government. Prepared May 14, 2019

Financing Safe Drinking Water and Wastewater Option 1: Create a national funding mechanism (such as FNII or similar regarding water) to apply to all First Nations under the legislation Option 2: Create a partial funding arrangement that defines principles and approaches (i.e. a commitment to actual cost funding and asset management) but does not define specific processes for financing Option 3: Don’t address financing mechanisms in the new legislation Pros: Provides certainty and clarity to all parties, predictable, transparent, and likely to get Crown buy-in in principle Cons: May not be flexible enough, may be rejected by First Nations Pros: Helps create some certainty while allowing for some flexibility and innovation, could be structured as a transitional approach while a more permanent solution and/or structure continues to be negotiated Cons: Doesn’t create a guarantee for First Nations and risks that by default administration will fall to ISC policies that have frustrated First Nations’ aspirations and held important projects up for years Pros: Easy to achieve as it is the Crown’s preferred option, allows for different financing arrangements to be created potentially Cons: Fails to use this legislative reform to achieve some certainty for First Nations, perpetuates the unacceptable status-quo, and risks that by default administration will fall to ISC policies that have frustrated FN’s aspirations and held important projects up for years Prepared May 14, 2019

Ensuring the Provision of Safe Drinking Water and Sanitation Option 1: Set standards for operations that apply to all First Nations across Canada Option 2: Define a process for creating regional/local standards Option 3: Do not address standards directly in the legislation or regulations Option 4: Define some national standards and delineate others for local/regional development Pros: Provides clarity and transparency to all parties, could allow for streamlining of standards and processes to make operations and training easier and cheaper, will likely appeal to the Crown and be able to attract buy-in; most transparent way to ensure safe drinking water; creates legal obligations that trigger funding Cons: Nations may resist these standards, complex to create and negotiate a full body of standards, ignores the reality of different local conditions and interacting with different provincial regimes Pros: Balances national approaches with regional innovation and definition, utilizes the legislative reform opportunity without imposing standards on First Nations Cons: Implementation costs may be high, leaves uncertainty as to outcomes, may entrench provincial or territorial boundaries and approaches and apply them to First Nations Pros: Easily accomplished, allows for Nations to define for themselves their own approach Cons: Utterly fails to address operations standards, likely to create a ‘patchwork’ of standards that will be complex and difficult to work with, perpetuates status quo, will likely be resisted by the Crown. Leaves FN’s vulnerable to exploitation by third parties and to cost cutting measures which would not be permissible in the face of enforceable standards Pros: If properly implemented, can capture some of the best elements of Option 1 and Option 2, adopting certain measures (water quality requirements for drinking water, engineering standards) which are universally supported as national standards and others (source water planning) which inherently call for local input; supports more innovation, more respectful of autonomy of Nations than single uniform standards for all elements. Cons: May be difficult to reach agreement on what elements are national and what are local; can lead to regional conflict, may be resisted by Crown who looks for single solution Prepared May 14, 2019

Question 1: What is missing from this Discussion Paper? Are there matters that you want to talk about that aren’t included? If so how would you like your voice to be heard? Please inform the facilitators of your Regional Engagement session or please email your concerns to FirstNationsWater@afn.ca. Prepared May 14, 2019

Question 2: Would you support the following: A licensing regime for First Nations drinking water and wastewater systems; Entrenching the “precautionary principle” as the basis for setting standards; Certification of all operators of drinking water systems; Inspection powers; Strong prohibitions and penalties;  Mandatory use of licensed and accredited laboratories for drinking water testing; Mandatory duty to report adverse test results; Statutory standard of care upon managers of drinking water systems; "Community right-to-know" principles; Meaningful public participation (non-First Nations) in standard-setting and decision-making under the Act; Include procedures for First Nations citizens to require investigations of suspected drinking water offences;  Prohibition of the transfer of ownership of municipal drinking water systems to private companies; Prepared May 14, 2019